Staying Agency Rules: Constitutional Structure and Rule of Law in the Administrative State


Today, administrative rules are far more numerous than the laws enacted by Congress, cover far more pages in the relevant legal codes, account for far more regulatory commands, and have profound effects on American economy and society. Although administrative rules can provide substantial public benefit, legal constraints on the scope of administrative authority and on the processes by which it is employed provide critical protections. Courts, when asked, can review the legality of these rules; courts also can stay rules’ effectiveness pending review, both preserving the status quo and reducing costs entailed by rules of questionable legality. Holding rules in abeyance until they can be reviewed frequently is the best—and at times the only—vehicle for guaranteeing a meaningful review. Given the vast reach of federal administrative regulation, the concentrated impact regulations often have on specific individuals and entities, and the frequent experience that staying rules’ effect is critical to limiting administrative adventurism and avoiding irreparable harm, canons of deference to both administrative and judicial discretion should be revisited. Greater attention to the harm from failure to stay questionable rules can protect rule-of-law values, preserve liberties that were central to our constitutional design, and provide space for serious evaluation of the rules’ consistency with law.